PUSSER’S RESPONSE

My name is Charles Tobias, and I am the founder of Pusser’s Rum. I apologize to all those who have politely expressed their views while expecting a more timely comment back from us. Unfortunately, I was on the road and have just returned to tell our side of the story.

We’ve been made out to be the bad guys, a giant bully towering over the little guys at PKNY. Nothing could be further from the truth. We ship about 30,000 cases annually. By comparison, sales of Bacardi and Captain Morgan in the U.S. are 9,400,000 and 6,200,000 respectively. So what we really are, with our 30,000 cases, is a little guy whose annual sales dollar volume is lower than thousands of well run bars in United States where many of you work. Think of us as a medium volume bar – and then you’ll have our size in perspective. We are not a giant, nor anything like it! The perception of the size of Pusser's Rum is way beyond reality. Nor are we the bad people that we’re being made out to be.

From inception, this company has, every year, given more than 50% of its earnings to charity. And it’s been done quietly. We have good values, but in America we also have the right to defend our intellectual property. Exercising that right does not make us bad.

The fact is that we are a very small company trying desperately to protect our intellectual property on which we believe a chunk of our future depends. The trademarks that we own were acquired fair and square. There was no skulduggery or stealing from anyone - and to state otherwise is untrue. If some of you believe that trademarking a drink is wrong, then why not work on getting the law changed? And what about Coca Cola that's had thousands of lawsuits over the past several years for trademark infringement? Is it wrong for Pusser’s or any trademark owner to defend the unauthorized use of its intellectual property? We don’t think so.

Daphne Henderson who owned the Soggy Dollar Bar where the Painkiller got its start, gave me permission to trademark the Painkiller in the U.S. and around the world. Her permission was not required, but we were very good friends, so I wouldn’t do it without her blessing. Under the law, the fact that someone else that may have preceded her at the Soggy Dollar Bar, and may have made the drink with another rum, is of no legal consequence in regards to the legitimacy of our Painkiller Trademark. All it means is that person, like the Soggy Dollar, has common law rights to use the trademark in their immediate area.

The taste of Pusser’s Rum is distinctive to Pusser’s. No other rum tastes like it, and in a drink like a Painkiller – no other rum punches through the mix to be tasted as Pusser’s does. It is the Pusser’s Rum that imparts the unique flavor to the Painkiller drink. Years ago, we ran tests that showed by a large majority that people preferred a Painkiller made with Pusser’s Rum over the other popular rums that we tested.

Like the “Dark & Stormy” from Goslings out of Bermuda, it was Pusser’s that introduced the Painkiller to the U.S. Over the past 25 years, we’ve spent more than $1 million promoting the drink. When someone orders a drink called PAINKILLER, or if the PAINKILLER is listed on a menu, we want those that order one to be served a drink that tastes like a PAINKILLER is supposed to taste, and not some variation of it that's been altered by the substitution of a different rum, which changes the whole character of the drink. Of course, any barman or bar owner has the right to do whatever he wishes with a drink, but if a patron requests a PAINKILLER, then he should be served what he asks for, a drink that is made with Pusser’s Rum and tastes like a PAINKILLER. If a barman wants to do his own version of the Painkiller and substitute another rum, then he should do it, but give his drink another name, and advise the patron of the substitution. If in a restaurant I order halibut, I don’t expect to be served cod unless the server advises me. This all we ask.

Our first contact and request that PKNY use Pusser’s Rum in their Painkiller was more than a year before we took action. One year. That is not being hasty. And we made contact more than 10 times. Contrary to what’s been written, we were always polite, and heavy handedness was never used as has been stated. But after one year of trying, we concluded that no agreement would be forthcoming. It was then, and only then, that legal proceedings were started. We did not ask for damages, or any kind of monetary remuneration; all we wanted was for PKNY to use Pusser's Rum in their Painkiller.

Under trademark law, if the trademark owner is aware of a third party's infringement and does not move to correct it, the trademark is not sustainable if challenged in court. We could not risk losing this mark because it would've wiped out two good commercial opportunities that we see for our company’s future. Several years of work would have gone down the drain. For 8 years, we’ve been working on a Painkiller Mix and looking at the chance for a Painkiller RTD (Ready-to-Drink Painkiller in a can). Losing the Painkiller trademarks would take away all chances of success for these products. They would be unprotected in the marketplace. If they took off, under the name "Painkiller", any giant of a company like a Diageo or a Bacardi or some other could introduce a drink of the same name and we'd be out of the running instantly. We’d be dead. Thanks to the trademark law, the little guy does have a chance. So this is what we sought to protect. This is why we waited more than a year for a positive response from PKNY. Finally, the lawyers said if we waited any longer, we would be jeopardizing our trademark position, and really a good part of what we see as the future of our business. It was a hard decision, and I hated to take the step. There was no anger or the “let’s get ‘em” mindset, but neither was there any other choice. We have to protect our intellectual property on which we believe so much of our future depends. We wish Giuseppe Gonzalez and Richard Boccato great success with their venture, and hopefully in the near future we will be working with them on the common goal of increasing the success of our two businesses.

In closing, I wish to state that I will not be able to respond to all of you on an ongoing basis because I am travelling constantly and my days are already 15 hours. I will try to post something mid-week on Wednesday or Thursday. Thanks for your understanding,